D.Deiseroth: The Importance of Whistleblowing in the IAEA Safeguards System

Beitrag von Mai 2012 für die internat. IALANA

The central - traditional - purpose of the Safeguards System of the IAEA (stated in the so-called „comprehensive safeguard agreements“) is to ensure that source material or special fissionable material is not diverted to nuclear weapons or other nuclear explosive devices (see para. 1 and 2 of the model agreement INFCIRC/153) in all Non-Nuclear-Weapon-States (NNWS).
The technical objective is „the timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown, and deterrence of such diversion by the risk of early detection“ (see para. 28, INFCIRC/153).

A second purpose – beyond INFCIRC/153 safeguards agreements - should be the detection of undeclared nuclear material and activities in all NNWS. This purpose, stated in the „Additional Protocol“, requires very different tools from those measures needed for the timely detection of the diversion of declared nuclear material. It requires
- to take the entire nuclear fuel circle of a NNWS in consideration (instead of only individual declared and notified individual facilities)
- to get complementary access to the declared facilities or locations outside facilities (LOF)
- to strengthen the access of the IAEA inspectorate to information from open and other sources.

Under the „Additional Protocol“ the IAEA inspectorate is authorized to request complementary access for any of the following reasons:
- to assure the absence of undeclared nuclear material and activities at sites of facilities or location outside facilities (LOFs), or at mines, concentration plants or other locations declared under Art. 2 as containing nuclear material,
- to resolve a question relating to the correctness and completeness of the information provided pursuant to Art. 2 or to resolve an inconsistency relating to that information
- to confirm, for safeguard purposes, the declaration of the NNWS of the decommissioned status of a facility or location outside the facility (LOF).

Nevertheless, the existing verification techniques, measures, methods and tools have inherent loopholes. In order to enable the IAEA to detect the existence of clandestine nuclear activities in a NNWS, the IAEA would have to be given the authority, the staff, resources and intelligence apparatus needed to control and to scour the territories of the more than 150 NNWS party to the NPT. There is no realistic prospect of this.

In any case, an additional system of verification would be useful: societal verification which should be an integral part of the NPT verification system of the IAEA.

Although there is no agreed legal definition, societal verification connotes the involvement of civil society in monitoring national compliance with, and overall implementation of, international treaties or agreements. It includes the monitoring of the implementation of national regulations designed to facilitate treaty compliance by states. Potentially the whole of society or broad groups within it may be involved, in contrast to specialised organisations, with their professional experts, which are established for official verification purposes.

One important element of societal verification is ‘citizens’ reporting’ of violations or attempted violations of agreements in their own countries, including by their own government. ‘Whistleblowing’ is a specific type of citizens’ reporting. Whereas citizens’ reporting relies on members of the general public finding out, in one way or another, about violations of or attempts to violate an international agreement, such actions can also be detected directly by employees, such as scientists and technologists, working in the relevant industries, departments, agencies or firms. Whistleblower are encouraged and willing to report to the public or to the national or international (IAEA) verification regime regarding violation of the respective treaty (NPT) or verfication agreement (INCIRC/153, IFCIRC/640 or others) of which they have become aware.

Fortunately, the IAEA has caught on one small part of this idea.
At its homepage (see: www.iaea.org/About/whistleblower1109.pdf ) there is posted a paper on

„PROCEDURES FOR WHISTLE-BLOWER REPORTING TO THE IAEA BY EXTERNAL PERSONS“.
How to Report to the IAEA
Whistle-blowers may use any of the following options to make a report tot he IAEA:
- Telephone – A dedicated telephone line (+43-1-2600-26111) has been set up in the Office of Director, Internal Oversight Services (OIOS) to receive telephone reports and messages and will only be accessible to authorized OIOS staff.
- Email – A dedicated email account (Diese E-Mail-Adresse ist vor Spambots geschützt! Zur Anzeige muss JavaScript eingeschaltet sein!) has been set up and will only be accessible to authorized OIOS staff..
- Facsimile – A dedicated fax machine (+43-1-2600-29126) has been set up in the office of Director, Office of Internal Oversight Services and will only be accessible to authorized OIOS staff.
- External Mail – Written reports should be placed in an envelope, sealed, and marked “Confidential to be opened by the addressee only”. The envelope should be addressed to Director, Office of Internal Oversight Services, P.O. Box 6, Vienna Austria

Who is adressed? The answer: „IAEA has zero tolerance for fraud, corruption or related forms of misconduct in its programmes and activities. External persons who wish to convey a concern, allegation or information that such action is occurring or has occurred, may submit a whistle-blower report to the IAEA. External whistle-blowers are any persons such as consultants, vendors, contractors or others who convey this information with the knowledge or belief that it is true.“
Obviously, in this declaration the IAEA doesn’t have the purpose to use whistleblowing as an important and valuable element within its verification system. The citied declaration only refers to the detection of „fraud, corruption or related forms of misconduct“. It is not mentioned at all that whistleblowing and societal verification would and could threngthen the effectiveness of IAEA safeguards systems (INFCIRC/153 and others; the Additional Protocol) and that it could build confidence in state adherence to obligations under national and international verification systems.

One of the famoust examples for societal verification by citizen reporting and whistleblowing is the activity of the German Nobel Peace Prize Laureate Carl von Ossietzky who worked as a journalist, writer and editor in Germany (“Republic of Weimar”) in the 1920s and 1930s. In his periodical, „Die Weltbühne”, he disclosed the secret military co-operation between the German Army (“Reichswehr”) and the communist soviet authorities which violated the international agreements concerning disarmament measures stated by the Peace Treaty of Versailles of 1919. Nevertheless, in 1931 Carl von Ossietzky and one of his colleagues were accused of treason and espionage, and then convicted and sent to prison by the German Supreme Court (“Reichsgericht”). This condemnation of the courageous journalist aroused tremendous acts of solidarity, both in Germany and in many other countries. Many contemporaries realized and honoured the important role of citizens like Carl von Ossietzky. In 1935 Carl von Ossietzky became laureate of the Nobel Peace Prize. The "case of Ossietzy" demonstrates the important (potential) role, which "Societal verification" can have, i.a. in the area of arms control and disarmament. Had the citizens of Germany and the governments of the states which were parties to the relevant disarmament treaties taken Ossietzky‘s disclosures about the German violations of important disarmament and arms control regulations more seriously, which he published in the "Weltbühne" and uncovered ahead of the world public, it would have been an important contribution to the common goal to avoid a new war initiated by a remilitarized Germany. Germany could not have started the Second World War had it not been armed in violation of the Peace Treaty of Versailles.

This argument that societal verification can play an important role holds true even today, especially for verifying nuclear and conventional arms control and disarmament as well as verifying biological and chemical disarmament.
The 1991 revelation that Iraq, a long-standing party to the Non Proliferation Treaty (NPT) and to a comprehensive safeguards agreement with the IAEA, had been able to establish clandestinely a considerable nuclear weapons programme demonstrated a lot of loopholes and defects in the IAEA safeguard system. Despite the achievements which had been reached after the IAEA’s failure to detect the Iraqi nuclear programme and which led to a modified „Strengthened Safeguard System“ (Additional Protocol) there remain severe problems in the verifying system: especially the shortfall in personal and financial resources needed to deal with growing demands on the safeguards system, such as the mounting stocks of seperated plutonium from the reprocessing of civilian spent fuel, the very difficult task to place the former military nuclear material in Russia and other states under the IAEA’s supervision, and the spread of nuclear enrichment technologies. In this situation it could be very important to increase the possibilities of detection of undeclared or hidden nuclear material or of prohibited co-operation with other countries pursuing (potentially or really) clandestinely nuclear programmes.

The same is true of the arms trade and export of embargo-relevant „dual use“-technology. National control and licensing authorities are usually under the control of governments which can, however, override the stated policy in the interest of money making or other substantial issues. The formal requirements (e.g. end-use-certificates) can easily be adapted to the wishes of the supplier-country so that on paper these requirements are shown to be fulfilled but in reality there is hardly any check on actual use. The transfers of nuclear, chemical and other material to Iraq from the U.K. (and other countries) between 1980 and 1990 are illustrative examples. In the „Arms To Iraq Scandal“ it was a whistleblower who helped to disclose and stop the violations against the embargo regulations: An employee of the British company „Matrix Churchill“ wrote a letter to the U.K.Foreign Secretary warning that munitions equipment was being exported, violating the U.N. embargo, to Iraq. Though this letter was ignored by civil servants for a number of years, it was feared that the whistleblower at „Matrix Churchill“ might contact the press during the prosecution of the company for breaching the arms embargo and this caused the Deputy Prime Minister to refuse to suppress evidence that the Government had been aware of the suspected exports.

Because any serious attempt to violate an international treaty like the NPT or an agreement like INFCIRC/153 (or a corresponding national legal legislation or regulation) would require the involvement of technologists, scientists and other employees, societal verification is nearly worthless without a special protection for those employees who „blow the whistle“.

(1) By international treaties as well as by domestic law there should be established legal protection against retaliation, discrimination and criminal prosecution. This could an important task even and especially for the IAEA: to implement whistleblower-protection-clauses into its safeguards agreements and other relevant documents. Additionally, due-process protection for dissenting employees should be developed and established by state legislation and regulations. The IAEA agreements and state legislaton should include the rights of all persons, especially of all professionals and employees
1* to inform in good faith appropriate bodies or, if necessary, the public in case of plans, projects and measures in the area of their own working-place or outside their working place which violate national or international law or principles of professional ethics and
2* to refuse work on such projects.
(2) There should be guaranteed exemption from punishment in case of self-disclosure (revelation of one’s own involvement in prohibited activities)
(3) There should be guaranteed by international and domestic law that a whistleblower could rely on legal protection in foreign countries in case of discrimination or criminalisation by or in their own state (i.e. the right to asylum for whistleblowers).

In 1997, an international consortium of lawyers, scientists, and disarmament specialists under the coordination of the US-Lawyers’ Committee on Nuclear Politics drafted a Model Nuclear Weapons Convention (Model NWC), which was circulated by the United Nations in 1997 as an UN-Document. Art. VII B of the Model NWC states, that „persons shall report any violation of this Convention to the Verification Agency established by the Convention. This responsibility takes precedence over any obligation not to disclose information which may exist under national security laws or employment contracts. Information received by the Agency under the preceding paragraph shall be held in confidence until formal charges are lodged, except to the extent necessary for investigative purposes. Section C of Chapter VII of the Model NWC states „Intra-State-Protection“ and „Inter-State-Protection“. It proposes the following Intra-State-provisions:
3* „Any person reporting a suspected violation of this Convention, either by a person or a State, shall be guaranteed full civil and political rights including the right to liberty and security of person“ (par.6);
4* States Parties „shall take all necessary steps to ensure that no person reporting a suspected violation of this Convention shall have any rights diminished or privileges withdrawn as a result“ (par.7).
5* Any individual who in good faith „provides the Agency or a National Authority with information regarding a known or suspected violation of this Convention cannot be arrested, prosecuted or tried on account thereof.“ (par.8).
6* According to par.9 „it shall be an unlawful employment practice for an employer to discriminate against any employee or applicant for employment because such person has opposed any practice as a suspected violation of this Convention, reported such violation to the Agency or a National Authority, or testified, assisted, or participated under this Convention.“
7* Any person „against whom a national decision is rendered on account of information furnished by such person to the Agency about a suspected violation of this Convention may appeal such decision to the Agency within ... months of being notified of such decision. The decision of the Agency in the matter shall be final.“ (par. 10)
The „Inter-State-Provision“ includes that „any person reporting a violation of this Convention to the Agency shall be afforded protection by the Agency and by all States Parties, including, in the case of natural persons, the right of asylum in all other States Parties if their safety or security is endangered in the State Party in which they permanently reside.“ (par.11)
Additional Provisions of the Model NWC state that the Executive Council etablished by the Convention „may decide to award monetary compensation to persons providing important information to the Agency concerning violations of this Convention.“ (par. 12) And: „Any person who voluntarily admits to the Agency having committed a violation of this Convention, prior to the receipt by the Agency of information concerning such violation from another source, may be exempt from punishment. In deciding whether to grant such exemption, the Agency shall consider the gravity of the violation involved as well as whether its consequences have not yet occurred or can be reversed as a result of the admission made.“ (par.13)

To encourage and to enable citizens for whistleblowing as an important element of „Societal Verification“, it is necessary, additionally, to establish a loyality to a much larger group than to one’s own company and to one’s own nation. There must be developed and strengthened a universal loyality to mankind. This is a very important task especially for the educational system and the mass media. The responsibility of scientists, technologists and other employees could be developed through training to identify activities that are, or are bordering on being, prohibited or activies which seem to be ethically questionable. Scientists in the universities and academies could develop special programmes and curricula for teaching and learning
8* how to realize ethical problems in research and development,
9* how to act in an ethical responsible manner as a professional and an employee and
10* how to manage ethical conflicts (whistleblowing).
It could become an obligatory part of every academic examination of students and academics to scrutinize the possible ethical consequences of scientific and technological proposals, inventions and developments.
Organisations and enterprises could develop due-process procedures for dealing with dissents and dissenters in a fair and responsive manner. Principal general approaches could be:
11* to work on a „Code of Ethics and Professional Conduct“ of the organisation which guarantees that nobody should be discriminated if he or she makes a „protected disclosure“ to a specified internal or external person or body
12* to establish an ombudsman within the organisation (concerning ethical behaviour) and
13* to establish a hot-line for complaints (anonymous or under full name) of employees who ask for advice.
Besides this, organizations of scientists and technologists and the other employees could support and encourage potential and acting whistleblowers, which would monitor the activities of individuals and groups likely to become involved in projects contravening international agreements and conventions or violating domestic law or standards of professional ethics. They could
14* develop a „Model Code of Ethics and Professional Conduct“ (for their membership),
15* publish appropriate whistleblower-cases and ethical conflicts,
16* publish the names and cases of employers, who have discriminated responsible professionals or other ethical employees,
17* offer professional advice in concrete conflicts,
18* organize acts of solidarity with whistleblowers,
19* establish „ethical support-funds“,
20* award whistleblowers,
21* lobby for better legal protection of whistleblowers („Public Interest Disclosure Act“).